SYNOPSIS: This rule finalizes, with changes, the interim final rule that implemented Section 308, Procurement Program for Small Business Concerns Owned and Controlled by Service-Disabled Veterans, of the Veterans Benefits Act of 2003 (Public Law 108-183), which permits set-aside and sole source procurements for service-disabled veteran-owned small business concerns (SDVOSBCs). In particular, this final rule clarifies SDVOSBC protest procedures.

EDITOR'S NOTE: The SBA's regulations are in Title 13 of the Code of Federal Regulations (CFR).

SUPPLEMENTAL INFORMATION: Section 308 of Public Law 108-183 amended the Small Business Act to establish a SDVOSB set-aside program which permits contracting officers to (1) award contracts set aside for SDVOSBCs if there is a reasonable expectation that two or more SDVOSBCs will submit offers and that the award can be made at a fair market price, or (2) award contracts to a sole source SDVOSB when there is not a reasonable expectation that two or more SDVOSBCs will submit offers, and the anticipated contract price (including options) will not exceed $5,000,000 for manufacturing or $3,000,000 for all else.

Section 125.6, Prime Contractor Performance Requirements (Limitations on Subcontracting), is amended by adding a statement that “the SDVOSBC joint venture must perform the applicable percentage of work.” This requirement is also in paragraph (b)(3) of Section 125.15, What requirements must an SDVOSBC meet to submit an offer on a contract?, but SBA believes it would be helpful to include it in Section 125.6 as well.

In Section 125.8, What definitions are important in the Service-Disabled Veteran-Owned (SDVO) Small Business Concern (SBC) Program?, the definition of “service-disabled veteran with a permanent and severe disability” is clarified to explain that SBA is relying on written documentation from the U.S. Department of Veterans Affairs (VA) that the veteran has a service-connected, permanent and total disability.

Paragraph (b) of Section 125.25, How does one file a service disabled veteran-owned status protest?, is clarified with an example of an insufficient protest allegation -- “A protester submits a protest stating that the awardee's owner is not a service-disabled veteran. The protest does not state any basis for this assertion. The protest allegation is insufficient.” Also, paragraph (e) is amended to require the contracting officer, when referring protests to SBA, to include “when the protested concern submitted its offer (i.e., made the self-representation that it was a SDVOSBC)” and “when the protester received notification about the apparent successful offeror...” This information is necessary for SBA to determine whether the protest has been submitted on time and the date SBA must use to determine eligibility.

To Section 125.26, What are the grounds for filing an SDVOSBC protest?, which had stated that contracting officers would only consider protests that present specific allegations supporting the contention that the owner(s) cannot provide documentation from the VA or DOD showing that the owner(s) meet the definition of service-disabled veteran or service-disabled veteran with a permanent and severe disability based upon information it has received, is added documentation from the National Archives and Records Administration (NARA). This is because a fire in St. Louis years ago destroyed many of these records, so the affected veterans have to contact NARA for documents evidencing their status as a service-disabled veteran.

In Section 125.27, How will SBA process an SDVO protest?, paragraph (c)(1) is amended to revise the amount of time a concern has to respond to a protest from five business days to ten business days. This is because SBA has learned that it could take a service-disabled veteran up to ten days to receive information from NARA, and perhaps longer from the different services, about their service-disabled veteran status.

Also, a new paragraph (e) is added to permit the contracting officer to “award the contract after receipt of a protest if the contracting officer determines in writing that an award must be made to protect the public interest.” This is in addition to the contracting officer’s authority to award the contract if SBA does not issue its protest determination within the 15-day period required by its regulations (paragraph (d).

Finally, paragraph (g) and Section 125.28, What are the procedures for appealing an SDVO status protest?, are revised to clarify the effects of a protest or appeal determination. If the contract has already been awarded and the protest is sustained, or the Office of Hearings and Appeals (OHA) judge affirms on appeal that the SDVOSBC does not meet a status or ownership and control requirement, then the procuring agency cannot count the award as an award to a SDVOSBC. If a contract has not yet been awarded and the protest is sustained, or the OHA judge affirms on appeal that the protested concern does not meet a status or ownership and control requirement, then the protested concern is ineligible for an SDVOSBC contract award.

EDITOR’S NOTE: SBA provides the following note in the introduction to the final rule:

Copies of most military personnel and medical records are on file at the National Personnel Records Center in St. Louis, MO; however some military personnel records are maintained by the military services depending on when the veteran was discharged. Veterans who filed or are filing a medical claim should contact the VA regional office in their state in order to determine if their medical record and claim for service connected disability is already on file. To request military personnel records, the below contact information is provided:

Branch of Service

Discharge Date

Information

Address

1. Air Force

Discharged or retired since September 25, 1947

Full name, Social Security Number and/or Service Number (both when available), enlistment and discharge dates, date of birth and place of birth (city and state), rank upon discharge or release, address where record is to be mailed, and signature

Full name, Social Security Number and/or Service Number (both when available), enlistment and discharge dates, date of birth and place of birth (city and state), rank upon discharge or release, address where record is to be mailed, and signature

Full name, Social Security Number and/or Service Number (both when available), enlistment and discharge dates, date of birth and place of birth (city and state), rank upon discharge or release, address where record is to be mailed, and signature

Full name, Social Security Number and/or Service Number (both when available), enlistment and discharge dates, date of birth and place of birth (city and state), rank upon discharge or release, address where record is to be mailed, and signature

Full name, Social Security Number and/or Service Number (both when available), enlistment and discharge dates, date of birth and place of birth (city and state), rank upon discharge or release, address where record is to be mailed, and signature